Burris v. State

WATTS, J. Following a trial held from July 20, 2010, through July 23, 2010, a jury sitting in the Circuit Court for Baltimore City convicted Shelton Burris, also known as Tyrone Burris, appellant, of one count of first-degree murder and one count of use of a handgun in the commission of a crime of violence. 1 See ⁹⁴ Md.Code Ann., Crim. Law Art. (“C.L.”) § 2-201 (first-degree murder); C.L. § 4-204 (use of a handgun in the commission of a crime of violence). On September 29, 2010, the circuit court sentenced appellant to life imprisonment for first-degree murder and nineteen years’ imprisonment consecutive for use of a handgun in the commission of a crime of violence, the first five years to be served without parole. Appellant noted an appeal raising three issues, which we quote and re-order as follows: I. Whether the [circuit] court erred by admitting extensive gang-related evidence, including expert testimony, that [appellant] was a member of the Black G[uer]rilla Family gang?[ 2 ] II.

Whether the [circuit] court erred by asking the venire a “CSI” type voir dire question?

III

Whether the [circuit] court erred by admitting evidence that [appellant attempted to call] his friend, Austin Lockwood, an individual who would later testify as a State’s witness at [appellant’s] trial, from jail? For the reasons set forth below, we answer each question in the negative. As such, we shall affirm the judgments of conviction. FACTUAL AND PROCEDURAL BACKGROUND On February 21, 2009, at approximately 1:00 a.m., Officer Bernard Cox of the Baltimore City Police Department received a call to report to the 2500 block of West Baltimore Street in Baltimore City for a shooting.

Upon arrival, Officer Cox found the body of Hubert Dickerson, Jr. and a large number of shell casings in the area. Officer Cox notified the homicide division, and Detectives Robert Dohony and Julian Min assumed responsibility for the investigation. The medical examiner determined that Dickerson died as a consequence of multiple gunshot wounds. On April 17, 2009, appellant was indicted in connection with the shooting. ⁹⁵ Motion Concerning Gang-Related Testimony On July 20, 2010, prior to the start of trial, the State moved to introduce evidence that the shooting was related to appellant’s membership in the Black Guerrilla Family (“BGF”) gang.

The State advised that it intended to introduce fact evidence to establish that the motive for the offense was related to appellant’s membership in the BGF, and to call Sergeant Dennis Workley of the Baltimore City Police Department as an expert in the area of gangs to testify about the workings of the BGF and appellant’s tattoos, and to opine that appellant is a BGF member. According to the State, appellant’s gang affiliation was directly connected to the issues of identity and motive and, therefore, admissible under Maryland Rule 5-404(b). In addition to the above, the State advised that, “assuming that the[] witnesses recant[ed] and their statements c[a]me in, [it] intended] to put on [Sergeant] Workley who has previously [been] qualified as a gang expert to testify as to what BGF is, [and] what they do.” Appellant’s counsel contended that “whether or not [appellant] is in the [BGF] or is not in the [BGF] ha[d] absolutely nothing to do with this case.” Appellant’s counsel argued that such evidence was not admissible as proof of either identity or motive, and that “[a]ll the State wants to do is poison the well because of the bad publicity everybody gets from the [BGF].” Appellant’s counsel concluded: “I think the prejudice outweighs the probative value and I don’t really think that the [BGF] had anything to do with this shooting.” After hearing argument from counsel, the circuit court determined that the gang-related evidence, including fact and expert testimony, was admissible to explain “... why [appellant] is the person who did the shooting!.]” The circuit court ruled orally from the bench as follows: All right. Based upon my understanding at this time and in what was presented to me before, I am prepared to allow this information to come in.

I believe that it is relevant in that the theory of the State’s case as all parties seem to consider that the murder was as a result of a debt that was ⁹⁶ owed, but why [appellant] is the person who did the shooting because a debt was owed to Bam[ 3 ] involves a question of their relationship. That their relationship that the State is prepared to prove involves the [BGF]—I believe makes that relevant evidence. Also, the fact that in Mr. Falcon’s[ 4 ] recorded statement, he claims to have been in an encounter between Bam whose name we will bring out later and [appellant] in which [appellant] is praised for doing the shooting, he came in saying ... That’s my boy.

Straight G[uer]rilla. I don’t believe that’s an insult. I believe that is praise and based upon that, I think that it is part and parcel of communications between possible co-conspirators here, but there is a way to avoid the prejudice involved. We’ve taken step number one already.

We voir dired the jury to make sure that the mention of gangs is not something that would affect their ability to be fair and impartial and when the time comes for me to instruct the jury at the end of the trial, I’ll want proposed instructions from each one of you about how I should address this and why the information was allowed so as to minimize the prejudice if any that is attended to. After the circuit court’s ruling, the following exchange occurred between appellant’s counsel and the court when appellant’s counsel sought clarification as to making objections during trial: [APPELLANT’S COUNSEL]: Your Honor, I was wondering since any mention of the [BGF] obviously, you know, I’m going to be objecting to that and I’ve heard you ma[k]e your ruling---- [D]o I have to get up and object every single time the word [BGF] comes in or can I have a continuing objection to anything that has to do with the [BGF] because I don’t think it should be mentioned in this trial. If you ⁹⁷ want me to get up and make an objection every time, I will, but I just want to make sure the record— THE COURT: I understand exactly what you’re saying, [appellant’s counsel,] and this is a complex area with the continuing objection because if you—if I don’t allow the continuing objection, you will underline the fact that you consider it to be prejudicial every time it’s mentioned and I will allow you a continuing objection except as to matters that we have not discussed here. [APPELLANT’S COUNSEL]: Yes, sir. THE COURT: All right.

If it’s something beyond what we have talked about, about these witnesses who are on tape and whose commitment to testifying is questioned, to the extent that it’s mentioned by them, with them, to them and from them, I’ll allow your continuing objection. To the extent that it comes in beyond that from someone, I’ll want you to object. To the extent that the State is bringing in people to explain what this reference means, your objection before they testify will be sufficient for that. All right. [APPELLANT’S COUNSEL]: Okay.

So, just, I think I understand what you’re saying. Are you saying like if they try to bring experts in, I should object again. THE COURT: You’ll object before the expert testifies. [APPELLANT’S COUNSEL]: Yes, Your Honor. THE COURT: And the experts won’t be testifying until it’s relevant for them to do so.

So, at that time, I can reconsider the decision that I’ve made here, but you object. That gives me a chance to reconsider it. As to these statements that we’re going over and the opening statement from the State, you don’t have to object to that because I am specifically now ruling that that is going to be admissible evidence. All right. [APPELLANT’S COUNSEL]: Yes, sir.

Trial At trial, Dominick Falcon testified as a witness for the State. Falcon’s testimony was inconsistent with a statement ⁹⁸ that he had made to detectives, incriminating appellant, following the shooting. As such, during Falcon’s testimony, the State introduced as substantive evidence an audio recording of an interview Falcon had with detectives on March 4, 2009. In the interview, Falcon stated that he heard appellant say, “I just killed a boy.

That’s how you’re supposed to do it[.]” Falcon told law enforcement officers that, after the shooting, he heard Bam praise appellant, saying “that’s my boy, straight G[uer]rilla.” Falcon explained that “Guerrilla” meant “being in a gang. BGF, Black G[uer]rilla Family.” Falcon also stated that appellant’s nickname is “69” and that Barn’s nickname is “Bootsy and Bam for real.” The following exchange occurred between Falcon and Detective Min: DETECTIVE MIN: Okay, Bootsy or Bam and that’s the nickname on the street and they’re a member of BGF. MR. FALCON: Yes.

DETECTIVE MIN: Okay. What do those letters stand for? MR. FALCON: Black G[uer]rilla Family.

In the interview, Falcon stated that, during the conversation with appellant, appellant stated “that he actually shot the boy, shot him on Baltimore and Shipley[.]” Falcon identified appellant from a photographic array and wrote on the back of the array, “We had a conversation ... He [appellant] was bragging about killing a boy on Baltimore Street. He was saying that’s how you were supposed to do the job, not a half job. I had this conversation with 69.” Falcon also identified Bam from a photographic array and wrote on the back of the array, “[h]e was there too and they were talking about that’s how you’re supposed to do the damn thing.

Bam told 69 to kill him and Bam was saying, that’s my f[ ] son. That’s how you’re supposed to do it.” Falcon told detectives that Bam was the boss and that appellant was a hit man for Bam. During Falcon’s interview, Falcon and Detective Min had the following exchange as to Bam and appellant’s relationship: ⁹⁹ DETECTIVE MIN: And you were telling me about the relationship between 69 and Bam and what was the relationship between them? MR.

FALCON: They like, Bam like, like the head owner for real guy. They say so and they listen to him. DETECTIVE MIN: The boss. MR.

FALCON: Yes, he was the boss, correct. DETECTIVE MIN: And does 69 work for Bam[?] MR. FALCON: Yes. DETECTIVE MIN: Okay and how do you know this?

MR. FALCON: Cause I see it. DETECTIVE MIN: What do you mean see it? MR.

FALCON: Like, I used to work for him too. DETECTIVE MIN: You used to work for Bam too. MR. FALCON: Yeah.

DETECTIVE MIN: What did you do for him? MR. FALCON: Selling heroin and cocainfe] for real. DETECTIVE MIN: So possibly, 69 is like a hit man for Bam.

MR. FALCON: Yeah, he like a hit man for real.... Yeah. DETECTIVE MIN: Okay and you say he always carries a gun with him.

MR. FALCON: Yes. At trial, Falcon testified that he lied to law enforcement officers when he told them that appellant admitted to committing the murder. Falcon testified that he lied during the March 4, 2009, interview, because law enforcement officers found cocaine and marijuana on him and he was scared, so he “came up with a lie.” Falcon testified that he had no firsthand knowledge of appellant admitting to the crime.

Detective Min, however, testified that no drugs were found on Falcon when law enforcement picked him up for the interview. Detective Min testified that, during the interview, Falcon told law enforcement officers that his life would be in danger if he testified at trial. ¹⁰⁰ Austin Lockwood testified at trial as a witness for the State, and his testimony was inconsistent with a statement that he had made to detectives, incriminating appellant, after the shooting. As a result, during Lockwood’s testimony, the State introduced as substantive evidence an audio recording of an interview Lockwood had with detectives on March 5, 2009. In the interview, Lockwood stated that appellant is a member of the BGF.

At a point, during trial, the recording was stopped, and the following exchange occurred: [APPELLANT’S COUNSEL]: ... This is [when] we’re going to get into all that stuff about the [BGF]. I still have a continuing objection. THE COURT: You have an objection and I have allowed the tape in completely.

So, [your] objection was previously noted as to the tape ... and those portions of the tape that come in.... All right. We’ll continue with the tape. (Taped statement of Austin Lockwood played for the Court.) “DETECTIVE PURTELL: [Appellant]^ part of an organization, correct?

MR. LOCKWOOD: Yeah. DETECTIVE PURTELL: And would you tell us the name of the organization? MR.

LOCKWOOD: BGF. DETECTIVE PURTELL: Is this a violent group? MR. LOCKWOOD: Yeah, extortion.

DETECTIVE PURTELL: Extortion, violence and where are they primarily? Are they in the jails? Are they in the streets? MR.

LOCKWOOD: They’re in jails, the jails, but it overlaps in the street. DETECTIVE PURTELL: It overlaps to the street and are you a member of BGF? MR. LOCKWOOD: No. ¹⁰¹ DETECTIVE PURTELL: So, if you would go over to the jail, there would be some safety issues; is that correct? [ 5 ] MR.

LOCKWOOD: Yes. DETECTIVE PURTELL: Cause you’re not BGF and the suspect 69 is. MR. LOCKWOOD: Yeah, that’s right.[”] In the interview, Lockwood advised the detectives that appellant is known as “69,” and that “ ‘69’ murdered a guy on Baltimore Street.” Lockwood described the events on the night of the shooting as follows: “Dude was walking and ’69’ approached him, did some business stuff and shot him and killed him.” Lockwood explained that “business stuff” meant that the victim owed “69” money.

Lockwood told the detectives that he was “[rjight up the street,” had a clear view of the shooting, and it was definitely “69” who had fired the gun. Detective Min testified that he was present for the interview and Lockwood identified appellant as the shooter from a photographic array. On the back of the photographic array, Lockwood wrote: “69 murdered the guy on the corner on Friday, 21st of ‘09. 69 is the person in the picture. I saw 69 sho[o]t the man[.j” In contrast, at trial, Lockwood testified that although he recalled speaking with detectives prior to trial on March 5, 2009, he did not recall the content of the conversation.

Lockwood testified that he made statements to law enforcement officers during the interview because he had been in a fight with appellant, and Bam told him that he wanted appellant off the street. Lockwood testified that he, in fact, did not see appellant “do anything” and that he had previously attempted to explain that to the court. Detective Min testified that ¹⁰² Lockwood told law enforcement officers he was afraid that appellant, who was his roommate from “time to time[,]” would kill him “as soon as the interview was over[.]” Joshua Johnson, who knew appellant for approximately a year at the time of trial, spoke with homicide detectives about the murder prior to trial and testified as a witness for the State. Detective Min testified that Johnson had been arrested on drug charges and told detectives that he had information relating to the homicide.

At trial, Johnson testified initially that he “really [couldn’t] remember” any conversations he overheard related to the murder. Later, however, Johnson testified that he overheard “69” say that he killed somebody. Johnson testified that appellant said that someone owed Bam money, and that Bam instructed appellant to kill this person. When asked whether people are afraid of appellant and Bam, Johnson testified, “Yeah.” Johnson testified that appellant said he used a .45 caliber “glock” gun to shoot the person.

Ashley Sparrow testified at trial as a witness for the State. Like Lockwood’s and Falcon’s, Sparrow’s testimony was inconsistent with a statement that she had made to detectives following the shooting. As a result, during Sparrow’s testimony, the State introduced as substantive evidence an audio recording of an interview Sparrow had with detectives on February 27-28, 2009. In the interview, Sparrow stated that she overheard a conversation between “69” and “Stacks.” When “Stacks” asked “69,” “Is that n[] dead?,” Sparrow heard “69” respond, “I don’t know if he’s dead, but I know I popped his a[ ].” Sparrow stated that she “kind of figured they w[ere] talking about the guy on Baltimore Street[.]” During the interview, Sparrow identified Bam and “69” from photographic arrays.

In contrast, at trial, Sparrow testified that, although she recalled speaking with detectives, she was intoxicated 'And high at the time and did not remember anything that she said. Sparrow testified that she could not recall anything about the photographic arrays. Sparrow testified that she never heard appellant say that he shot someone. Detective Min testified ¹⁰³ that, when Sparrow spoke with detectives on February 27, 2009, she did not appear to be intoxicated or high.

Detective Min testified that Sparrow told him that she would not testify in court because she would be killed. Over appellant’s objection, Sergeant Dennis Workley of the Baltimore City Police Department testified as an expert witness for the State in the field of gangs, gang membership, gang insignia, gang ranking, and gang identification. Sergeant Workley gave testimony on the following topics: (1) the history and structure of the BGF, (2) the Division of Corrections’s classification of appellant as a member of the BGF and appellant’s membership in the gang, and (3) appellant’s tattoos. Sergeant Workley testified that the BGF is a prominent prison gang in Maryland and that it controls “most of the jails in the State[,]” “what goes on inside[,j” “the narcotic trade inside” the jails, and “the inflow of information going back and forth” from outside to inside of the jails.

Sergeant Workley testified that the BGF is run like a business, uses it own language, ranks its members, and has a published constitution that outlines the gang’s rules. The State asked Sergeant Workley, “[a]nd has the Department of Corrections listed [appellant] as a member of the [BGF]?,” to which Sergeant Workley replied, “[y]es, they have.” Appellant’s counsel did not object to the question or response. A certified copy of the Division of Corrections’s records listing appellant as a gang member, State’s Exhibit No. 36, was not admitted into evidence. Sergeant Workley testified that, in his opinion, appellant is a member of the BGF.

Sergeant Workley examined pictures of appellant’s tattoos and testified that several of the tattoos had gang-related meanings. For example, Sergeant Workley testified that tattoos of “Baltimore” and “Franklin,” on the outside of appellant’s right and left forearms, indicated the area in which appellant does business, that a tattoo of a weapon and “187,” on the inside of appellant’s left forearm, stood for “a penal code in California for homicide[,]” that an “OG” tattoo, on appellant’s left forearm, meant “original gangster” and corresponded to a tattoo of “work real, real n[ ] don’t die[,]” also on ¹⁰⁴ appellant’s left forearm, that another tattoo of weapons, on appellant’s left bicep, stood for “death before dishonor[,]” and that appellant had tattooed his “street name” (“Sixx 9”) on his left pectoral muscle. During Sergeant Workley’s testimony as to appellant’s tattoos, the following exchange occurred during a bench conference: [APPELLANT’S COUNSEL]: ... I just want to make sure ...

I’ve objected properly for the record .... to the best of what I’ve heard in the case, nobody ever said that this was a gang ordered hit. So, that’s why I have to object to all this stuff about, about the gang and the prejudice is outweighing the probative value. Then you have these tattoos that have guns. These tattoos have death before dishonor and all this other stuff and this is a, this is a murder case and none of this stuff has anything to do with the identification of [appellant] involved in this particular murder.

It isn’t like anybody said, I saw this tattoo. I saw anything. So, we’ve got a murder case and I just think that the prejudice clearly outweighs the probative value. It poisons the well for the jury.

So, that’s why I have to object to all of these and any of [Sergeant Workley]’s testimony. THE COURT: All right____ I understand your objections .... Because we have witnesses who have changed their testimony from the time that they met with the police shortly after this event to, to taking four different tac[k]s of denying their statements. One said that he lied because he was ordered to do so by Bam, to lie on [appellant].

Another said, he doesn’t remember anything about what he said, but then in Court, identified and said, oh yeah, I did say that. That’s what it was. The third person said that she was drunk and didn’t know anything about any of these statements. Never knew anything about it, but never said anything to the police and then the fourth said that he lied because the police forced him to[ ].

Each of them in their statements indicate some level of fear of [appellant], some specifically stating because of his gang involvement or ¹⁰⁵ Barn’s gang involvement. That’s how it got to be relevant in the case. It was in the statements. I wasn’t going to clear it out of the statements.

Now, the question is whether or not the State should be allowed to prove that [appellant] is in fact a member of a gang. I think because of the way in which the information came from the reluctant witnesses, it is unavoidable. Had the witnesses not been and I am satisfied afraid to testify, we could have kept this all out, but because they changed their testimony because I am satisfied they were afraid to testify truthfully, then everything they said virtually has to come in to explain why they’ve changed their testimony. It is something of ... a very negative side [e]ffect of witnesses being afraid not to testify because if they testify, we can focus on their testimony.

If they don’t testify and rely on what they have said in the past, it’s virtually everything they’ve said in the past comes in. So that’s why it’s part of this case. Now, the witness who is before us now and the evidence that we’re considering is only for the purpose of establishing whether or not [appellant] is a member of a gang. I remind you and the record that in anticipation of this, we asked the general voir dire question about whether information or references about gang activity would interfere with the juror’s ability to render a fair and impartial verdict.

They said, no and I am anticipating from each of you some form of specific instruction for me to give them about how they should be processing this information[.] (Emphasis added). Appellant’s counsel did not cross-examine Sergeant Workley. At the end of trial, the circuit court asked the parties how they wanted the jury to be instructed as to the gang-related evidence. Because neither side advanced an instruction, the circuit court proposed an instruction concerning the gang-related evidence.

In response to the circuit court’s proposed instruction, appellant’s counsel stated: “I’m in a bad spot because I’m objecting to all the gang stuff coming in and I’m going to try to come up with an instruction to cure it. So, I’ll ¹⁰⁶ leave it with the Court.” The circuit court solicited suggestions and told the parties that it could “also give nothing.” Appellant’s counsel replied: “Well, I certainly want something that he’s not being charged with any crime of being in a gang.” At the end of the discussion, the circuit court noted: “All parties are in agreement. That’s the instruction that I ■will give them.” The circuit court instructed the jury as follows: Now, you have heard evidence of the Defendant’s involvement in gang activity. The Defendant is not charged with a crime involving being a member of any gang.

Information about the Defendant’s involvement if any with a gang was allowed only for you to understand the relationship between the Defendant and other parties in this case. Appellant’s counsel did not object to the instruction and did not note an exception to the instruction when the circuit court inquired about exceptions after the instructions were given. Voir Dire Before trial, during voir dire, the circuit court asked the venire panel the following question: Now, ladies and gentlemen, there may be some mention or allegations that the victim, [appellant] or witnesses may have some involvement with a gang. Would the fact that it was alleged that a person had a connection to a gang affect your ability to fairly and impartially decide the case?

If anyone thinks that would, that would affect your ability to fairly and impartially decide the case, please stand and I’ll take your number. In response to the question, Juror No. 034 and Juror No. 110 6 stood. The circuit court also asked the venire panel the following question: ¹⁰⁷ Now, ladies and gentlemen, there are many different types of evidence. There is direct evidence.

There is circumstantial evidence. Direct evidence is someone who says, I saw this. I did this. I heard this.

So and so said this to me. That’s direct evidence. Circumstantial evidence is evidence that you have to draw a conclusion based upon it about something important in the case. Within this world of, of science or circumstantial evidence is the world of scientific evidence and within that world there is now what is referred to as crime scene investigation type of evidence.

The type of evidence that’s been dramatized in the television programs, the Hannibal Lecter books and movies that deal with trace evidence. Trace evidence being hair and fingerprints and DNA and one book fingerprints on an eyeball. These are dramatizations of forms of circumstantial evidence. The jurors will be called upon to consider all of the evidence that is presented no matter who it is presented by.

No matter what the person, the party is urging you to consider. Is there any member of the jury panel who would require trace evidence in order to accept a proposition presented by one of the parties? In other words, you say well, she didn’t present this or he didn’t present that. I can’t accept it.

Is there any member of the jury panel who set that form of artificial standard? If your answer is, yes, please stand and I’ll take your number. Okay, your number in the back, sir, again. JUROR: 034.

No other juror stood in response to the question. Appellant’s counsel failed to lodge any objection at the time the questions were asked of the venire panel, or during the individual questioning of potential Juror No. 034. 7 At the end of voir ¹⁰⁸ dire, appellant’s counsel exercised a peremptory challenge and struck Juror No. 034. Juror No. 034 was not impaneled as a member of the jury. At the conclusion of the jury selection process, appellant accepted the impaneled jury, without objection.

Jailhouse Telephone Call On July 20, 2010, during a motions hearing, appellant’s counsel moved to exclude a recorded telephone call made by appellant on October 5, 2009, from the Baltimore City Detention Center, to someone who was purportedly Lockwood’s girlfriend, looking for Lockwood. The State argued that the telephone call was relevant because it demonstrated that appellant was attempting to locate Lockwood to intimidate him and prevent him from testifying, and because it would assist in explaining why Lockwood would change his story and recant his eyewitness identification of appellant at trial. In response, appellant’s counsel argued that at the time of the call on October 5, 2009, appellant did not know the names of the witnesses in the case against him as the State had only provided numbers (“witness number one, witness number two[,]” etc.), rather than names. The circuit court observed that, although appellant was not told the names of the witnesses, “[tjhere’s a big difference between not knowing and not being told.

Not being told and knowing is almost evidence of guilt.” After hearing argument from both parties, the circuit court denied the motion to exclude the telephone call, ruling orally from the bench, in pertinent part, as follows: ¹⁰⁹ I mean, ... if it means anything, it means well—it is open to the interpretation the State’s presenting or it’s open to an interpretation that means absolutely nothing. That’s the art of arguing what the evidence is, but I don’t believe that’s a reason to exclude the evidence. It is evidence that will not cause us to go off on any type of tangent and it is consistent and [the] motion to exclude the conversation of October 5, 2009 is denied. At trial, Sergeant Monique Mitchell testified, as a witness for the State, about the procedures for recording inmate telephone calls at the Baltimore City Detention Center.

During Sergeant Mitchell’s testimony, the State moved to play State’s Exhibit No. 24, the CD of the October 5, 2009, telephone call to Lockwood, and the following exchange occurred: [THE STATE]: Your Honor, with the Court’s permission, I’ve marked for identification as State’s Exhibit No. 24, the CD and I would like to play that for [Sergeant] Mitchell to hear. [APPELLANT’S COUNSEL]: Objection. THE COURT: Excuse me. [APPELLANT’S COUNSEL]: I’m objecting. THE COURT: Come on up. [APPELLANT’S COUNSEL]: I just want to play the initial part of what she’s talking about, first and then have her go into more detail about— THE COURT: Well, what’s your, what’s the basis of your objection? [APPELLANT’S COUNSEL]: This is not, just let me make sure I understand. This is, this is the call that was supposedly made from my client to a woman looking for— [THE STATE]: Artie’s girlfriend looking for Artie.[ 8 ] [APPELLANT’S COUNSEL]: Okay.

All right. I’m going to object based, you know, based on what’s the relevance of that tape to this proceeding. ¹¹⁰ THE COURT: Very well. I’ve already considered that and denied your motion to exclude— [APPELLANT’S COUNSEL]: Yes, sir. THE COURT:—but I’m going to allow it in.

The jury was given copies of transcripts of the recorded telephone call, State’s Exhibit No. 26. Thereafter, the recording of appellant’s outgoing call from the Baltimore City Detention Center was played for the jury. During the call, the following exchange occurred between an unidentified speaker, supposedly Lockwood’s girlfriend, and appellant: UNIDENTIFIED SPEAKER: Who is this? [APPELLANT]: 69 calling for Artie____Where he at, he ain’t there? UNIDENTIFIED SPEAKER: No. [APPELLANT]: Where he at?

UNIDENTIFIED SPEAKER: Who is this? [APPELLANT]: 69. UNIDENTIFIED SPEAKER: 69, how did you get this number? Who gave you this number? [APPELLANT]: Artie. UNIDENTIFIED SPEAKER: He told you to call, Artie is locked up. [APPELLANT]: When did he get locked up?

UNIDENTIFIED SPEAKER: He been locked up. Why would he give you this number? Oh, you’re the one he called his father— [APPELLANT]: Hah, yeah.... What did he get locked up for? ...

When do[es] he go to court? UNIDENTIFIED SPEAKER: He go[es] to court tomorrow. [APPELLANT]: He coming home. UNIDENTIFIED SPEAKER: I don’t know. I’ll see when I go to court tomorrow. [APPELLANT]: That is the dumbest thing—(inaudible). ¹¹¹ UNIDENTIFIED SPEAKER: Um, when he write me it say 401 Eager Street. [APPELLANT]: 401 Eager Street.

What’s his id number? What is the id number? UNIDENTIFIED SPEAKER: ... His id number is 808 ... 2575. [APPELLANT]: My man is crazy.

It ain’t even funny. This is crazy. That’s why I’m going to be mad at his dumb a[ ].... All right.

If you talk to him, tell him I said I love him. After the telephone call was played for the jury, State’s Exhibits No. 24 and No. 26, the CD and transcript of the telephone call, were admitted into evidence over appellant’s objection. DISCUSSION I. Gang-Related Evidence A. The Contentions Appellant contends that the circuit court erred by admitting gang-related evidence, specifically, the pretrial statements by Lockwood and Falcon, as well as Sergeant Workley’s expert testimony concerning the BGF. Appellant argues that the “inner workings” of the BGF and appellant’s involvement with the gang were not relevant to the issues in the case as there was no evidence that the murder was gang-related and, even if “minimally relevant,” the probative value of the evidence was substantially outweighed by the danger of unfair prejudice.

Appellant asserts that there “was absolutely no evidence admitted at trial that the victim of the shooting was a member of a rival gang, did anything to provoke the ire of the BGF, or was in any way connected with the BGF[,]” or that the victim owed money to anyone. Appellant maintains that the circuit court abused its discretion by allowing Sergeant Workley to ¹¹² testify about the BGF, appellant’s tattoos, and appellant’s classification as a gang member by the Division of Corrections, and to offer the opinion that appellant was a member of the BGF. Appellant acknowledges that it was permissible for- the State to present evidence that witnesses recanted their statements because of fear, but maintains that it was not permissible for the witnesses to testify that the reason for their fear was his gang affiliation. Appellant argues that Sergeant Workley’s testimony “ran too far afield” from explaining witnesses’ recantations, and that the jury did not need expert testimony to “understand that it is reasonable for a citizen to fear a gang member.” Appellant contends that the admission of the gang-related evidence was not harmless beyond a reasonable doubt as there was no physical evidence linking him to the offense.

The State responds that the circuit court properly exercised its discretion in admitting gang-related evidence for the purpose of explaining the reason the witnesses recanted statements previously provided to law enforcement officers. The State contends that the circuit court properly determined that the gang-related testimony was relevant and admissible because it explained inconsistencies between the witnesses’ pretrial statements and trial testimony. The State argues that, under the circumstances of the case, the circuit court appropriately found that evidence of appellant’s relationship with Bam, including that appellant was a member of the BGF, as well as evidence concerning the BGF generally, “was relevant to the jury’s determination of the credibility of the in-court testimony given by Lockwood, Johnson, Sparrow and Falcon.” The State maintains that, because appellant failed to present any argument on appeal in support of the contention that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice, this Court should decline to address the issue. On the merits, the State argues that the circuit court properly exercised its discretion in determining that the danger of unfair prejudice did not sub ¹¹³ stantially outweigh the probative value of the gang-related evidence.

Alternatively, the State asserts that any error in admission of the testimony was harmless beyond a reasonable doubt, given: (1) the circuit court’s voir dire question, asking whether jurors could be fair and impartial even if evidence demonstrated that appellant had a connection to a gang; and (2) the circuit court’s limiting jury instruction as to how the gang-related evidence was to be considered. In a reply brief, appellant contends that “the threshold requirement established in [Gutierrez v. State, 423 Md. 476 , 32 A.3d 2 (2011) ] to allow for expert testimony regarding the [BGF] has simply not been met in this ease[,]” as the State failed to present evidence that the BGF was connected to the shooting. Relying on Gutierrez, appellant argues that expert testimony is permissible only if the crime itself is gang-related, and that the State failed to explain how expert testimony would assist the jury in understanding the reason for the witnesses’ recantations. B. Standard of Review In Gutierrez, 423 Md. at 485-86 , 32 A.3d 2 the Court of Appeals outlined the applicable standard of review as to the admissibility of expert testimony: Maryland Rules 5-702 through 5-706 govern expert testimony.

Specifically, [Maryland] Rule 5-702 provides: Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony. In Raithel v. State, 280 Md. 291 , 372 A.2d 1069 (1977), this Court articulated the standard of review for the admissibility of expert testimony: ¹¹⁴ [T]he admissibility of expert testimony is a matter largely within the discretion of the trial court, and its action in admitting or excluding such testimony will seldom constitute a ground for reversal. It is well settled, however, that the trial court’s determination is reviewable on appeal, and may be reversed if founded on an error of law or some serious mistake, or if the trial court has clearly abused its discretion.

Id. at 301 , 372 A.2d at 1074-75 (quotation marks and citations omitted). A reviewing court may find an abuse of discretion where the prejudice of the admitted testimony outweighs its probative value. See State v. Faulkner, 314 Md. 630, 641 , 552 A.2d 896, 901 (1989). Prejudice that would “outweigh probative value involves more than mere damage to the opponent’s case.” State v. Allewalt, 308 Md. 89, 102 , 517 A.2d 741, 747 (1986).

C. Law In Snyder v. State, 361 Md. 580, 591-92 , 762 A.2d 125 (2000), the Court of Appeals discussed the concept of relevance as follows: Relevance is a relational concept. Accordingly, an item of evidence can be relevant only when, through proper analysis and reasoning, it is related logically to a matter at issue in the case, i.e., one that is properly provable in the case. In order to find that such a relationship exists, the trial court must be satisfied that the proffered item of evidence is, on its face or otherwise, what the proponent claims that item to be, and, if so, that its admission increase or decreases the probability of the existence of a material fact. Moreover, the relevancy determination is not made in isolation.

Instead, the test of relevance is whether, in conjunction with all other relevant evidence, the evidence tends to make the proposition asserted more or less probable. (Citations omitted). Maryland Rule 5-403 provides, in pertinent part: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice!)]” In Odum v. State, 412 Md. 593, 615 , 989 ¹¹⁵ A.2d 232 (2010), the Court discussed the balancing test provided in Maryland Rule 5-403 and the concept of prejudice: [T]he fact that evidence prejudices one party or the other, in the sense that it hurts his or her case, is not the undesirable prejudice referred to in [Maryland] Rule 5-403. Evidence may be unfairly prejudicial if it might influence the jury to disregard the evidence or lack of evidence regarding the particular crime with which he is being charged.

The more probative the evidence is of the crime charged, the less likely it is that the evidence will be unfairly prejudicial. It has been said that [probative value is outweighed by the danger of unfair prejudice when the evidence produces such an emotional response that logic cannot overcome prejudice or sympathy needlessly injected into the case. (Citations and internal quotation marks omitted) (alterations and emphasis in original). (1) Maryland Case Law-Gangs Maryland appellate courts have reviewed the admission of gang-related evidence under circumstances in which the evidence was relevant to establish motive or identity, and where the offense was found to be “gang-related.” In Ayala v. State, 174 Md.App. 647, 664, 666 , 923 A.2d 952 , cert. denied, 401 Md. 173 , 931 A.2d 1095 (2007), this Court held that the trial court properly exercised its discretion in admitting gang-related evidence, including expert testimony, as “the evidence was highly probative in establishing motive and was not unduly prejudicial under the circumstances.” In Ayala, 174 Md.App. at 651-52 , 923 A.2d 952 , “[t]he State presented evidence that Ayala and his two accomplices were members of ‘MS-13,’ a violent Latino gang.

The State theorized that the three men killed [the victim] because they believed-possibly mistakenly-that he was a member of a rival gang known as the ‘18th Street gang.’ ” At trial, the State presented expert testimony from Detective Michael Porter of the Fairfax County, Virginia Police Department’s Gang Investigation Unit. Id. at 654 , 923 A.2d 952 . “Detective Porter [described] the history and cus ¹¹⁶ toms of the MS-13 gang.” Id. Detective Porter reviewed photographs seized from Ayala’s home depicting persons, including Ayala, wearing MS-13 colors, making hand signals, and having gang-related tattoos. Id. at 655-56 , 923 A.2d 952 .

Detective Porter opined that Ayala was a member of MS-13, and that Ayala, in a fight against a member of a rival gang, “could not just sit by and do nothing” or else he “would have been disciplined[.]” Id. at 656 , 923 A.2d 952 . With Judge Arrie W. Davis speaking for the Court, we stated that “[tjhere can be little doubt that evidence that a defendant is a member of an organization known for violent acts may be evidence of bad character or prior bad acts[,j” which is usually prohibited unless it falls under a purpose listed in Maryland Rule 5-404(b), such as proof of motive or identity. Id. at 658 , 923 A.2d 952 . We observed that courts in other jurisdictions “have consistently held that evidence of a defendant’s membership in a gang is admissible if the evidence is relevant to establish the defendant’s motive.” Id. at 659 , 923 A.2d 952 .

We stated that “[tjhere may be strong prejudice against street gangs ... but that alone does not render gang evidence inadmissible. Gang evidence is admissible despite the prejudice that attaches if it is relevant and particularly if it is crucial in establishing motive.” Id. at 663 , 923 A.2d 952 (quoting People v. Davis, 335 Ill.App.3d 1 , 268 Ill.Dec. 829 , 779 N.E.2d 443, 456 (2002), appeal denied, 202 Ill.2d 680 , 272 Ill.Dec. 361 , 787 N.E.2d 176 (2003)). After reviewing cases from New Mexico and Illinois, we held as follows: [Tjhe gang testimony presented by the State corroborated the defendant’s—in this case Ayala’s—pre-trial statement that the perpetrators and the victim were members of rival gangs. Further, the evidence served to explain the “otherwise inexplicable,” by providing a motive for a brutal and seemingly senseless killing....

While we establish no bright-line rule as to the admissibility of gang evidence in Maryland, we conclude that the trial court properly exercised its discretion when it admitted the evidence in question. As the trial court deter ¹¹⁷ mined, the evidence was highly probative in establishing motive and was not unduly prejudicial under the circumstances. Id. at 664, 923 A.2d 952 (emphasis added) (citations omitted). We concluded that the probative value of Detective Porter’s testimony was “significant” and that the factual basis for the detective’s opinion was “strong.” Id. at 666 , 923 A.2d 952 .

See also Wimbish v. State, 201 Md.App. 239, 262-63 , 29 A.3d 635 (2011), cert. denied, 424 Md. 293 , 35 A.3d 489 (2012) (“[T]he evidence [in this case] established a motive for the crime, specifically that [Wimbish], ‘loyal to his Blood family members,’ went from Baltimore to Columbia ‘to take care of business for another Blood member.’ Thus, ... the [trial] court did not err in concluding that the evidence of [Wimbish]’s gang affiliation fit within the ‘motive’ exception of [Maryland] Rule 5-404(b).” (Citation omitted)). In Gutierrez, 423 Md. at 481 , 32 A.3d 2 the Court of Appeals considered “whether expert testimony about the history, hierarchy, and common practices of a street gang [was] admissible as proof of motive or [was] prohibited by Maryland Rule 5-404(b) as evidence of other crimes, wrongs, or acts.” The Court held that “such testimony is permissible where fact evidence establishes that the crime charged was gang-related and the probative value of the testimony is not substantially outweighed by any unfair prejudice to the defendant.” Id. at 481-82 , 32 A.3d 2 . In Gutierrez , Sergeant George Norris, Supervisor of the Prince George’s County Gang Unit, testified as an expert witness for the State about the MS-13 gang culture. Id. at 484 , 32 A.3d 2 .

Sergeant Norris opined, based on pictures on the defendant’s MySpace page, that the defendant was affiliated with MS-13. Id. In reviewing the admissibility of gang-related evidence, the Court of Appeals observed that “[njumerous jurisdictions have permitted the inclusion of such evidence as relevant and not unduly prejudicial.” Id. at 490 , 32 A.3d 2 . The Court stated that “[generally, a gang expert’s testimony is relevant and not unduly prejudicial when other evidence demonstrates that the crime was gang-related.” In reviewing the approach of other ¹¹⁸ states to the admission of gang-related evidence, the Court observed that the Supreme Court of California held that “testimony on a gang’s general practice of witness intimidation was necessary to explain why witnesses who had identified the gang-tattooed defendant as the gunman later recanted at trial.” Id.

In Gutierrez, 423 Md. at 495-96 , 32 A.3d 2 the Court of Appeals explicitly held: [W]e must determine whether the trial court erred in admitting testimony of a gang expert at all, and if not, whether Norris’s testimony was unfairly prejudicial. In doing so, we remain ever-cognizant of the highly incendiary nature of gang evidence and the possibility that a jury may determine guilt by association rather than by its belief that the defendant committed the criminal acts. We agree with the Supreme Court of New Mexico that courts must be vigilant in guarding against the improper use of gang affiliation evidence “as a backdoor means of introducing character evidence by associating the defendant with the gang and describing the gang’s bad acts.” Thus, we hold that the threshold requirement for the admissibility of gang expert testimony is fact evidence showing that the crime was gang-related. Proof of such a link transforms a defendant’s gang membership, current or prospective, from an impermissible prior bad act to a concrete component of the crime for which the defendant is on trial.

To be clear, this requirement may be satisfied by fact evidence that, at first glance, may not indicate gang motivations, but when coupled with expert testimony, provides the gang-crime connection____In adopting this threshold requirement, we are simply saying that a defendant’s membership in a gang, in and of itself, is not enough. (Some emphasis in original) (citations and footnotes omitted). In Gutierrez , because the evidence provided by three fact witnesses indicated that the victim’s murder was motivated by the defendant’s affiliation with the MS-13 gang, the Court concluded that the evidence was sufficient to “open the door for expert testimony[.]” Id. at 497 , 32 A.3d 2 . ¹¹⁹ (2) Authorities from Other Jurisdictions—Gangs Although Maryland appellate courts have not directly addressed the issue now before us—whether gang-related evidence, including expert testimony, is admissible to explain why witnesses recanted, at trial, information previously given to law enforcement officers—courts in other jurisdictions have addressed the matter. In People v. Ruiz, 62 Cal.App.4th 234, 240 , 72 Cal.Rptr.2d 572 (1998), the Court of Appeal of California, Second Appellate District, Division Seven, discussed the admission of gang-related evidence, observing: [Ejvidence of gang membership has been admitted to prove bias, provided it is not cumulative to other properly admitted, and less inflammatory, evidence.

Evidence of a relationship between a witness and a party is logically relevant to show bias. One such relationship is common membership in an organization: business, fraternal, national, etc. (Citations omitted). In People v. Gonzalez, 38 Cal.4th 932 , 44 Cal.Rptr.3d 237 , 135 P.3d 649, 656 (2006), cert. denied, 549 U.S. 1140 , 127 S.Ct. 996 , 166 L.Ed.2d 752 (2007), the Supreme Court of California held that the trial court acted within its discretion in permitting expert testimony on street gangs in East Los Angeles where, at trial, witnesses repudiated information previously given to law enforcement officers. In Gonzalez , the defendant was a member of the Lott Stoners 13 street gang and had “Lott 13” tattooed on his neck and, by the time of trial, on the back of his head.

Id., 44 Cal.Rptr.3d 237 , 135 P.3d at 652 . At trial, “[t]he prosecution presented two kinds of evidence that [the] defendant was the gunman: (1) eyewitness identifications that were, with one exception, repudiated at trial; and (2) evidence, also repudiated at trial, that [the] defendant told a fellow gang member that he was the shooter.” Id. After acceptance by the trial court as an expert on street gangs in East Los Angeles, Sergeant A1 Garcia testified, in pertinent part, that, in gang culture, it was “bad” to be someone who assisted law enforcement as a witness or informant, and that such people “are often intimidated not to testify.” Id., 44 ¹²⁰ Cal.Rptr.3d 237 , 135 P.3d at 653-54 . Upon review, the Supreme Court of California observed that California appellate courts “have long permitted a qualified expert to testify about criminal street gangs when the testimony is relevant to the case[,]” including testimony as to “the culture and habits of criminal street gangs[.]” Id., 44 Cal.Rptr.3d 237 , 135 P.3d at 656 (citations and internal quotation marks omitted).

The Supreme Court of California held: This testimony [from Sergeant Garcia] was quite typical of the kind of expert testimony regarding gang culture and psychology that a court has discretion to admit. Whether members of a street gang would intimidate persons who testify against a member of that or a rival gang is sufficiently beyond common experience that a court could reasonably believe expert opinion would assist the jury.... Sergeant Garcia’s testimony was relevant to help the jury decide which version of the testimony was truthful: the eyewitnesses’ initial identifications of defendant as the shooter, and [a fellow gang member’s initial statement that defendant admitted being the shooter, or the later repudiations of those identifications and that statement. “Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible. An explanation of the basis for the witness’s fear is likewise relevant to her credibility and is well within the discretion of the trial court.” Evidence of possible intimidation would help explain why the witnesses might repudiate earlier truthful statements.

Id., 44 Cal.Rptr.3d 237 , 135 P.3d at 657 (citations omitted). The Supreme Court of California observed that Sergeant Garcia “did not express an opinion as to whether the particular witnesses [who recanted] had been intimidated.” Id., 44 Cal.Rptr.3d 237 , 135 P.3d at 658 . Sergeant Garcia provided only general expert testimony regarding gangs and “[i]t was up to the jury to determine how much to credit this testimony and, if it found it credible, to apply it to the rest of the evidence it heard.” Id. ¹²¹ Illinois appellate courts have also addressed the admission of gang-related expert testimony to explain motive and why a witness recanted an earlier statement. In People v. Tolliver, 347 Ill.App.3d 203 , 282 Ill.Dec. 900 , 807 N.E.2d 524, 541 (2004), appeal denied, 211 Ill.2d 610 , 291 Ill.Dec. 391 , 823 N.E.2d 977 (2004), cert. denied, 544 U.S. 1019 , 125 S.Ct. 1986 , 161 L.Ed.2d 858 (2005), the Appellate Court of Illinois, First District, Fifth Division, held that admission of gang-related evidence, including expert testimony, was proper and that the trial court “committed no clear abuse of discretion^]” 9 In Tolliver, 282 Ill.Dec. 900 , 807 N.E.2d at 530 , Sergeant Mark Moore of the Chicago Police Organized Crime Division, narcotic and gang investigation section, testified as to the rules, bylaws, slang terminology, and operation and security of illegal drug sales of the Gangster Disciples street gang.

Sergeant Moore testified that the gang had bylaws and rules, that a broken rule is a violation, and that the gang beats or kills those who testily against each other. Id., 282 Ill.Dec. 900 , 807 N.E.2d at 530 . The Appellate Court of Illinois discussed the admission of the above gang-related testimony as follows: Gang-related evidence is admissible to show common purpose or design, or to provide a motive for an otherwise inexplicable act. Gang-related evidence is also relevant to identification or to corroborate a defendant’s confession.

However, such evidence must relate to the crime charged.... Testimony regarding the background, history and criminal activity of the gangs is improper if peripheral to the offense at issue. Id., 282 Ill.Dec. 900 , 807 N.E.2d at 541 (citations omitted). Accordingly, the Appellate Court of Illinois held that the trial ¹²² court did not abuse its discretion in admitting gang-related evidence as it was relevant to show motive, presence, and identification.

Id. The defendant specifically contended that the trial court improperly admitted testimony that the gang had rules, that broken rules are considered violations, and that people who testify against the gang are beaten or killed in retaliation. Id., 282 Ill.Dec. 900 , 807 N.E.2d